Govt directive undermines NZ Immigration department principles

A change in immigration department policy which could potentially affect almost all migrant workers was notified to immigration staff through an Internal Administration Circular on 14th November 2011.

This issue was originally identified by blog website NoRightTurn who obtained key documents under the Official Information Act. The story has now made it into mainstream headlines and I have written this article to explain what this change means and who it could affect.

What has changed?

When an application made to the immigration department for a visa is declined the reasons for refusing that application are always recorded in accordance with the
core principles of the immigration department: fairness and natural justice.

What the circular does is to direct staff on cases involving section 61 of the Immigration Act specifically not to record the reasons for declining an application, effectively making it impossible for the applicant to appeal or question the decision.

19. The rationale and reasons for the decision should not be recorded, either on the template, in the notes or in communication with the client.

So what is section 61 and when does it apply?

Basically S61 affects anyone who doesn’t have a valid visa. Anyone not a permanent residence or citizen can find themselves unlawfully in New Zealand if their visa expires or is cancelled for any reason. In this situation you are automatically and immediately classified as being in New Zealand unlawfully. I wrote an article about how easy it is to become an overstayer last May on Move2NZ’s blog.

What used to be known as S35A in the 1987 Immigration Act was updated to S61 in the 2009 Act:

Immigration Act 2009

61 Grant of visa in special case

  1. The Minister may at any time, of the Minister’s own volition, grant a visa of any
    type to a person who—

    1. is unlawfully in New Zealand; and
    2. is not a person in respect of whom a deportation order is in force.
  2. A decision to grant a visa under subsection (1) is in the Minister’s absolute discretion.

Under section 14 of the Act any non-citizen in New Zealand must hold a valid and current visa to be here. If you do not have one you are unlawfully in New Zealand and must leave.

If someone who is unlawfully in NZ applies for a visa to stay section 61 kicks in. Over the past few three years an average of 138 cases have fallen into this category with most of these being approved. At the end of December 2011 the department had 58 cases on hand.

A real-life example

Often migrants do not see how a change like this might affect them, so here is a real-life example of someone affected by this legislation:

A migrant came with his family to New Zealand aiming to get permanent residency through the Skilled Migrant Category. His skills were listed on the Long Term Skills Shortage and he was soon offered work.

To take up that job offer (and get the points he needed for his residency application) he obtained a temporary work visa, started working and then entered his Expression of Interest (EOI) for residency – a route taken by about 80% of people who gain permanent residency. Unfortunately just a month later he was made redundant through company restructuring.

He (and his family) were then unlawfully in New Zealand.

Why? Because his visa was linked to his job. No job, no visa and no visa = unlawfully in the country. He told immigration about this change of circumstances and was told to leave New Zealand.

Luckily, being highly skilled, he was offered another job and applied for a new work visa to allow him to stay in New Zealand and start work. As he was unlawfully in New Zealand this application was handled under S61 of the Immigration Act. His application was declined and again he was told to leave New Zealand.

He successfully appealed this decision with the Removals Authority (now the Immigration Protection Tribunal) on the basis that the immigration department’s decision was wrong. The immigration department was ordered to give him a 12 month work visa, giving him time for his application for residency to be processed – effectively making the residency application the test of whether he should go or stay. He now has residency.

Fairness and Natural Justice

While there may be an argument that this change does indeed breach New Zealand law (potentially violating both the right to justice and the Public Records Act.) I’ll leave that discussion to the lawyers.

What I do know is that “fairness and natural justice” are the core principles that the immigration department and system are based on. The immigration department’s operations manual has this to say:

Underpinning all our activity is the desire to provide the best possible service and to demonstrate honesty, fairness, confidentiality and respect in all our dealings.

According to A1.1 of the operations manual:

All immigration officers must act on the principles of fairness and natural justice when deciding an application.

As you would expect, being founded on these core principles the immigration system contains a number of processes to protect individuals from unfairness or mistakes, for example the right to appeal decisions to the Immigration Protection Tribunal (which reviews immigration decisions), the office of the Ombudsman (which reviews the actions of government departments and the High Court.

Why was this change made?

Appeals through the Ombudsman’s office and high court take time and resources and it appears that this decision has been made simply to cut costs. In contrast to this the immigration department’s operations manual has this to say:

Good decision-making requires attention to process, to how the decision is made, as well as looking at the merits of the case. A fair process is more likely to ensure a fair outcome. Decisions that are not made in the proper manner may be reviewed by the courts or become a subject of complaint to the Ombudsman

By making this change to systematically stop recording the reasons for an immigration decision the right of appeal is automatically removed as one needs the basis for the decision to be able to appeal it. Migrants in this position will be unable to use the systems set in place to protect them from mistakes or unfair decisions.

Taking action

Undermining these core principles of the immigration department cannot be a good thing and I believe this is simply a mistake which needs to be corrected quickly to avoid damage to the department’s reputation.

I’ll be writing to the Immigration Minister to highlight my concerns and will let you know the result.

If anyone is currently affected by this change please contact me to share your story – any information will be handled in strict confidence.

This article was first published on move2nz.com 29/2/12 – move2nz.com: helping inform and support migrants since 2005.

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One Response to “Govt directive undermines NZ Immigration department principles”

  1. Rene Says:

    This is exactly what is happening to one of my staff,
    This is the below letter i sent to Immigration to try and help them understand the seriousness of our situation, without this member of staff we are going to have to close down and make a further 5 people in christchurch redundant and the toll it will take on our 3 children my wife an i will have us on breaking point, i have changed the names to protect our identitys

    My name is bob of THAI RESTAURANT LTD

    I am writing this letter as a reference for both Thai Guy and also in the hope of helping my wife and her business, who have struggled through both earthquakes and losing her business.

    I would like to share with you the tragedy and travisty that has occurred over the past 2 years, as we are all aware the Earthquakes have had devastating roll on effects for many businesses here in Christchurch, my wifes restaurant especially as she had no insurance protection at all, so after Feb Earthquake it left her without a business as it was situated only four doors down from the Hotel Grand Chancellor, up untill that day the business was operating successfully and was a popular little spot, unfortunaltley the earthquakes were’nt our only dilemia, one of our head chefs left running scared from Christchurch and took up employment elsewhere.

    I spent a lot of time away from my own business to try and help re-start my wifes operation and after months of looking around found a decent little spot , I then proceeded to re-build her business by building first a little caravan to start trading from and then eventually a 40ft container converted into a full commercial kitchen, we intially had such good run up until March when our Head Chef left to work at another Restaurant as she had been offered better money and we at the time couldn’t compete, this was another huge blow to our business and I then put my business on hold again to help out at my wifes restaurant, we advertised and desperatly contacted others in the Thai community and even reached out through the Thai Temple in Marshlands road to see if we could source a new chef, this has been a tough and trying time for us, through our niece Kat we spoke with a young man called Super chef whom was having huge troubles in Nelson, I meet him and spoke with him and through translation uncovered what the underlying issues were, it is my very strong belief he has being completely mis lead by someone whom he thought he could trust.

    Now we find ourselves in similar situations where in fact each of us have become a key to helping each other, Superchef is the answer to our problems, he is pleasant and polite , keen and a hardworking individual, I am fully prepared to support Superchef in not only his applications but also in offering to help pay for English Tutoring. Our business needs his help , I fear without the aid of his professionlism and skills we may end up having to shut our doors purely for the lack of skilled Thai Chefs, Superchef has also spent the last month helping us to upskill and train our sous chef and also shown us how to provide better cost effective ways around our kitchen in terms of minimizing waste and utilizing what we already have to make more of a profit margin without increasing our prices,
    I sincerely urge you to please take the above in consideration as not only are you assisting with Superchefs work visa but you would also be responsible for helping us rebuild our business after all these devastating events,
    I am more than happy to be interviewed further if you wish to meet me and my wife,
    Kind regards
    bob

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